WILSON v. STATE

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Court of Criminal Appeals of Texas.

Ronald WILSON, Appellant v. The STATE of Texas.

No. PD-0307-09.

Decided: March 3, 2010

Roderick B. Glass, Asst. Appellate Public Defender, San Antonio, for Appellant. Alison A. Fox, Asst. Criminal District Atty., San Antonio, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

OPINION

In this case of first impression, we must decide whether article 38.23 of the Code of Criminal Procedure1 bars the admissibility of a confession if the interrogating officer fabricates documentary evidence in violation of Texas Penal Code section 37.092 and uses it to persuade a suspect to confess.3 We agree with the San Antonio Court of Appeals, which held that (1) the interrogating officer violated the law by fabricating a forensic report falsely stating that appellant's fingerprints were found on the magazine clip of the murder weapon;4 and (2) the trial judge erred in denying appellant's motion to suppress.5

I.

On January 1, 2006, appellant called 911 to report that he had found a man's body while walking home with his son. When San Antonio police responded, they found the body of Amos Gutierrez, who had been killed with a single gunshot. The magazine clip for a pistol was found near his body. When police received information implicating appellant in the murder, they arrested him on unrelated misdemeanor warrants. After appellant confessed on videotape to the shooting, he was charged with capital murder. He filed a motion to suppress his confession, contending that his confession was involuntary and obtained in violation of the federal and state constitutions as well as Texas law.

A. Proceedings in the Trial Court.

At the hearing on appellant's motion to suppress, Detective Roberts admitted that he had fabricated a forensic lab report to convince appellant to respond to his questioning. The report stated that appellant's fingerprints were found on the magazine clip retrieved from the crime scene, but, in fact, no legible prints were found on the clip. Det. Roberts testified that he used an old crime lab report as a template to create the false document on his computer. He explained that he obtained a preexisting report, changed the heading to “Bexar County Criminal Investigation Laboratory,” and created the following text:

Results: Examination of Item 1 revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of Ronald Wilson, a Black Male with the date of birth 11-13-84, SAPD 0436899, [Bexar County Sheriff's Office] 0401670, DPS 6548907, FBI 393432VB3, SID 0811325, Fingerprint Class 9I15I0013, 028WMMI.

When he entered the interrogation room, Det. Roberts showed the fabricated document to appellant in the hope that appellant would rely on it and give him incriminating information. He began the interview at 10:02 p.m. by asking appellant if he had touched anything at the murder scene. Appellant repeatedly denied doing so. Det. Roberts then handed appellant the fake report at 10:13 p.m., and explained that his fingerprints were on the gun clip. Appellant studied the report for a moment, shaking his head in apparent disbelief. At 10:15 p.m., Det. Roberts again reminded appellant that “they had his fingerprints” and listed other incriminating evidence. At 10:17 p.m., appellant interrupted and said that he didn't know how his prints wound up on the clip. At 10:20 p.m., Det. Roberts again recounted all of the incriminating evidence, listing the fingerprint report first. At 10:24 p.m. Det. Roberts stated that he “can't get over the prints”:

Let me remind you, I've got that report. Those guys are experts. They're like DNA experts. They're like experts. What they say is the truth, and we got you.

At that point appellant put his hands on his head, looked down, and said, “Okay. Okay.” Immediately thereafter he admitted that he had shot Mr. Gutierrez.6

At the hearing, appellant questioned Det. Roberts about section 37.10, tampering with a governmental record, and asked the detective to read that provision aloud: “A person commits an offense if he makes, presents, or uses any record, document, or anything with knowledge of its falsity and with the intent that [it] be taken as a genuine governmental record.” Det. Roberts admitted that he created a document that he knew to be false, and he wanted appellant to rely on it to give him information.

Appellant then argued that Det. Roberts's conduct violated section 37.10 of the Penal Code. Because the officer's conduct violated a penal law, the Texas statutory exclusionary rule, article 38.23, barred admission of appellant's confession.7

At a later hearing on the same motion, defense counsel, the prosecutor, and the trial judge discussed the distinctions between the use of deception and the use of a fabricated police fingerprint report.8 Defense counsel repeatedly argued that Det. Roberts had violated Texas penal laws. The trial judge then asked the prosecutor, “So what do you have to say about his argument that this is a violation of the criminal laws of the State of Texas?” The prosecutor said that he did not think that fabricating “a fingerprint result sheet from a crime lab would be considered a governmental record as defined in 37.10.” The trial judge expressed doubt about whether the forged document was actually a “government record” under the statute, but he acknowledged that the use of the “report” was clearly “a turning point in the interrogation that was going on” and that it led to “his final statement and their finding of the weapon and everything-clearly.” The judge concluded that “whether or not I think that's appropriate behavior, the Supreme Court doesn't seem bothered by that.” Ultimately, the trial judge ruled that the confession was admissible, and he made oral findings of fact and conclusions of law.9 After his motion to suppress was denied, appellant pled nolo contendere to the lesser-included offense of murder and was sentenced to twenty-eight years in prison.

B. Proceedings in the Court of Appeals.

On appeal, appellant argued that his confession was inadmissible for a number of reasons, including the federal and state constitutions and article 38.23. He based his article 38.23 argument on the violation of both Texas Penal Code section 37.09, tampering with evidence, and section 37.10, tampering with a governmental record. The State did not object that appellant had failed to raise the section 37.09 argument in the trial court.

The court of appeals reversed and remanded. Based on Det. Roberts's admission that he “knowingly creat[ed] the false document with the intention that defendant would consider the document as genuine and confess to shooting the victim,” it concluded that the trial court had erred in denying appellant's motion to suppress.10 It held that the facts presented at the hearing, in light of the plain language of section 37.09, showed that Det. Roberts's conduct violated that statute, and therefore suppression of appellant's confession was required under article 38.23.11 The State petitioned this Court to review only the question of whether the court of appeals erred in its holding concerning whether Det. Roberts violated section 37.09 by using a fabricated document, and whether that statute is related to the purpose of the Texas statutory exclusionary rule.12 The State does not now complain, and never has complained, that appellant failed to raise his section 37.09 argument in the trial court, although it could have done so in its petition for discretionary review.13 Under these circumstances, we conclude that there is no issue before us concerning the propriety of the court of appeals's reliance on section 37.09, tampering with evidence, as opposed to section 37.10, tampering with a governmental record, in resolving appellant's Texas exclusionary statute claim.14

We therefore turn to the merits of the question before us: does article 38.23 of the Texas Code of Criminal Procedure bar the use of evidence obtained in violation of the penal statute of tampering with evidence?

II.

A. Standard of Review.

In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review.15 Although we give almost total deference to the trial court's determination of historical facts, we conduct a de novo review of the trial court's application of the law to those facts.16 As the sole trier of fact during a suppression hearing, the trial court may believe or disbelieve all or any part of a witness's testimony.17 Furthermore, we examine the evidence in the light most favorable to the trial court's ruling.18 However, a trial court necessarily abuses its discretion if it refuses to suppress evidence that is obtained in violation of the law and that is, therefore, inadmissible under article 38.23.19

In this case, the historical facts are not in dispute. We adopt the trial court's findings concerning these facts20 and will view the evidence in the light most favorable to his ruling. The issue in this case is one of pure law concerning the applicability of article 38.23.

B. Article 38.23 prohibits the admission of evidence obtained in violation of Texas penal laws related to gathering, creating, or destroying evidence.

In 1925, the Texas Legislature enacted a state exclusionary rule that was based upon, but broader than, the federal exclusionary rule.21 Thus, the use of any evidence that would be barred by federal constitutional principles-as interpreted by the United States Supreme Court-is barred under article 38.23, our state exclusionary rule.22 But article 38.23 prohibits the use of a much broader category of “illegally obtained” evidence.23 It includes evidence that is obtained in violation of Texas laws as well as that obtained in violation of the federal and state constitutions.24 The underlying purpose of both the federal exclusionary rule and article 38.23 is the same: to protect a suspect's privacy, property, and liberty rights against overzealous law enforcement.25 As such, both exclusionary rules are substantive in nature, as they provide a remedy for the violation of those rights.26

Although the plain language of article 38.23(a) would suggest that evidence obtained in violation of any law must be suppressed, the State is correct in its assertion that article 38.23(a) may not be invoked for statutory violations unrelated to the purpose of the exclusionary rule.27 The primary purpose of article 38.23(a) is to deter unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for prosecution.28 Article 38.23(a) may not be invoked for statutory violations unrelated to the purpose of the exclusionary rule or to the prevention of the illegal procurement of evidence of crime.29

1. Texas Penal Code § 37.09 prohibits police officers from using fabricated documents to affect the course of their investigations.

The State argues that tampering with evidence is a crime whose purpose “is to prevent individuals from defrauding the government. It is in no way related to the collection of evidence by police detectives.” That is a mistaken understanding of the statute. The purpose of section 37.09 is to maintain the honesty, integrity, and reliability of the justice system and prohibiting anyone-including members of the government-from creating, destroying, forging, altering, or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding.30 Obstruction-of-justice offenses, such as tampering with evidence or government documents, address “the harm that comes from the [actor's] disobedience of the law-damage to the authority of the government; a lessening of the public's confidence in our institutions; public cynicism, fear, and uncertainty; and a social climate that is likely to lead to even greater disobedience.”31 Public scandals involving police and “throw down” guns,32 pool-chalk wrapped to look like cocaine used as evidence to prosecute innocent people,33 false offense reports,34 and the like are not unheard of in this state. Neither police nor private individuals have a license to fabricate documents or other evidence and then use them to affect a criminal investigation or other official proceeding.35 This is exactly the type of law violation that the Texas Legislature intended to prohibit when it enacted article 38.23-conduct by overzealous police officers who, despite their laudable motives, break the penal laws directly related to gathering and using evidence in their investigations. A police officer's violation of section 37.09 (or section 37.10) to obtain a confession or other evidence is at the core of conduct proscribed by the Texas exclusionary statute.

The State notes that the United States Supreme Court and this Court have long stated that the police may use “trickery and deception” during an interrogation;36 thus, it argues, fabricating evidence is just another form of trickery and deception. It is not. According to Fred E. Inbau, the author of “the leading interrogation manual” for police officers,37 verbal trickery, deception and “outright lies concerning the existence of evidence” are acceptable interrogation strategies, but not the use of “false, incriminating documents.”38 Specifically, the Inbau Manual states,

The investigator, however, should not prepare false incriminating documents that appear to have been generated through an official source (for example, a crime lab, the FBI). The reason for this is a concern that such falsified documents may find their way into the court system, see State v. Cayward, 552 So.2d 971 (Fla.Dist.Ct.App.1989).39

The problem is that such fabricated physical evidence-the type of evidence covered by section 37.09-has an enduring life of its own and could end up being mistaken for “the real McCoy”:

Unlike oral misrepresentations, manufactured documents have the potential of indefinite life and the facial appearance of authenticity. A report falsified for interrogation purposes might well be retained and filed in police paperwork. Such reports have the potential of finding their way into the courtroom.40

If police officers were free to manufacture physical evidence and fabricate documents to use in interrogating suspects, courts would no longer be able to routinely rely upon law enforcement or crime-lab reports as being accurate and reliable. The Texas Legislature, in enacting section 37.09 of the Penal Code, recognized that it is essential to our system of justice that citizens and members of the legal community can rely upon the integrity of government-generated documents and other evidence.

The State argues that “ ‘sanctioned deception’ is required in the course of a criminal investigation.” As an example, it notes that “when an undercover officer buys an illegal narcotic in a controlled sale, the officer is not ‘in possession’ of the controlled substance as defined in the penal code.”41 Correct. That is statutorily “sanctioned deception.” The Texas Legislature specifically exempted police officers who are acting in their official capacity from liability for the penal offense of possession of a controlled substance.42 The Texas Legislature could, should it so decide, exempt police officers from liability for the offenses of tampering with evidence or fabricating government documents, but it has not yet done so. We are required to follow the law as it is currently written. Sometimes “it takes a thief to catch a thief,” but the decision to exempt police officers from certain penal laws rests with the Legislature, not the courts.

The State also notes that some courts have held that the use of fabricated physical evidence or documents to induce a confession is merely one factor to consider under “the totality of circumstances” in deciding whether a defendant's confession is voluntary under the Due Process Clause of the United States Constitution.43 If appellant had presented us with a federal constitutional question concerning the voluntariness of his confession, that might well be our approach. But a claim concerning the “voluntariness” of a confession under the due process clause of the federal constitution is an entirely different claim, assessed under legally distinct standards, from one concerning the violation of a state statute relating to the acquisition of evidence.44 By enacting article 38.23, which bars the use of evidence obtained in violation of Texas penal statutes related to the acquisition of evidence, the Texas Legislature pre-empted this issue as a matter of state law, regardless of the constitutional voluntariness of appellant's confession. Thus, we must conclude that a violation of section 37.09, a state law directly related to the acquisition and use of evidence in criminal investigations and proceedings, bars the admission of other evidence obtained through that violation, even when the defendant's confession is “voluntary” under federal constitutional standards.

2. Det. Roberts violated section 37.09 of the Texas Penal Code.

A person violates section 37.09 if he:

(1) knowing that an investigation is pending or in progress;

(2) makes, presents, or uses a document with knowledge of its falsity; and

(3) acts with the intent to affect the course or outcome of the investigation.45

Det. Roberts forthrightly admitted that, during his investigation of the murder of Amos Gutierrez, he created a false fingerprint report by altering a real governmental report which he intended for appellant to think was a genuine report. He did this because he hoped that appellant would rely on that altered report and make an incriminating statement. Det. Roberts's ploy was successful, and the use of the false fingerprint report did affect Det. Robert's investigation by causing appellant to confess to murder.46 This conduct violates section 37.09.47

The State argues that, “[s]ince detectives are allowed to deceive suspects during interrogations, Detective Roberts was reasonable in believing his act in presenting the ‘dummy’ lab report to Wilson was lawful. Because this belief was reasonable, the exclusionary rule is not applicable.”48 First, Det. Roberts never said that he thought his conduct was lawful or that he believed that it was lawful to use a fabricated fingerprint report as a part of his investigation. He never said that he thought that what he was doing was reasonable. He did say, when asked if his conduct violated section 37.10 (tampering with governmental record), “I think that's stretching it,” but he never explained why he thought that his conduct might not be a violation of that penal provision. More importantly, a “good faith,” or “pure motive” violation of Texas penal laws concerning the acquisition of evidence does not render article 38.23 inapplicable to the evidence obtained as a result of that violation. Det. Roberts's subjective belief that his conduct was lawful or reasonable would not render the Texas exclusionary statute inapplicable to his violation of section 37.09.

In sum, we agree with the court of appeals that the officer violated section 37.09 of the Texas Penal Code and that appellant's confession was inadmissible under article 38.23.49 We therefore affirm the judgment of the court of appeals.

The majority states the issue as: “whether article 38.23 of the Code of Criminal Procedure bars the admissibility of a confession if the interrogating officer fabricates documentary evidence in violation of Texas Penal Code section 37.09 and uses it to persuade a suspect to confess.” Article 38.23 prohibits the admission of evidence obtained by an officer in violation of Texas law. Code Crim. Proc. Ann. art. 38.23. The law the majority and the court of appeals have deemed violated reads, “A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he ․ makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.” Penal Code Ann. § 37.09.

The problem with the majority's conclusion is that in order for article 38.23 to bar the admission of Appellant's confession, Detective Roberts would have to be guilty of violating section 37.09; and, I do not believe he could be found guilty of violating that statute.

Although Detective Roberts was not convinced of Appellant's involvement in the shooting and knew that there were no legible prints lifted off the magazine found at the scene, the detective presented a “Forensic Latent Print Report” to Appellant upon entering the interrogation room. The detective testified that, in preparation for the interview, he created the document, which he knew to be false. The document stated:

Examination of Item 1 revealed the Two Latent Prints lifted from the Firearm Magazine belong to those of Ronald Wilson, a Black Male with the date of birth 11-13-84․

But the detective's educated guess as to the source of the prints turned out lucky: Appellant admitted shooting the victim. The detective's report was not wrong because even though it stated that there were identifiable latent prints lifted when in fact there were no legible prints, Appellant did shoot the victim. And that fact makes it highly likely that the unidentifiable prints on the magazine were indeed his.

Because Detective Roberts could not be convicted of Tampering with or Fabricating Physical Evidence, I respectfully dissent. The trial court did not abuse its discretion in denying the motion to suppress, and therefore, I would reverse the court of appeals and affirm the trial court's judgment.

I would hold that the court of appeals erred in addressing Wilson's claim under Penal Code Section 37.09. The issue under Section 37.09, as noted by the majority and then improperly discounted, was not preserved in the trial court. The State's failure to call the appeals court's attention to this deficiency does not change the fact that the alleged error under Section 37.09 was not properly preserved. Preservation is systemic, and the San Antonio court was obligated to address preservation, regardless of the State's failure to complain about it.1 I would remand this case so that the court of appeals can address Wilson's remaining points of error, which were not considered in its first opinion.

I respectfully dissent. Concerning the court-made federal exclusionary rule that it adopted in Weeks v. United States,1 the United States Supreme Court has stated:

Suppression of evidence, however, has always been our last resort, not our first impulse. The [federal] exclusionary rule generates substantial social costs, which sometimes include setting the guilty free and the dangerous at large. We have therefore been cautio[us] against expanding it, and have repeatedly emphasized that the rule's costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application. We have rejected [i]ndiscriminate application of the rule, and have held it to be applicable only where its remedial objectives [of deterring police conduct that actually violates a defendant's personal rights] are thought most efficaciously served,-that is, where its deterrence benefits outweigh its substantial social costs.

Hudson v. Michigan, 547 U.S. 586, 591, 596, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (internal quotes and citation to authorities omitted).

The federal exclusionary rule “is an entirely American legal creation” which “is still universally rejected by other countries.” See Sanchez-Llamas v. Oregon, 548 U.S. 331, 343-44, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006) (internal quotes omitted). The federal exclusionary rule is generally applied to deter police violations of the defendant's Fourth and Fifth Amendment rights and to deter police violations of statutes that implicate these Fourth and Fifth Amendment rights. See Sanchez-Llamas 548 U.S. at 348-49, 126 S.Ct. 2669.

Appellant's confession would not be excluded under these federal exclusionary rule principles. According to the majority opinion, the “underlying purpose of both the federal exclusionary rule and article 38.23 is the same: to protect a suspect's privacy, property, and liberty rights against overzealous law enforcement” and the “primary purpose of article 38.23(a) is to deter unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for prosecution.” See Maj. Op. at ---- - ---- (emphasis supplied). Despite this, the majority opinion also states that our state statutory exclusionary rule in Article 38.23(a) “prohibits the use of a much broader category of ‘illegally obtained’ evidence” than does the federal exclusionary rule and that “Article 38.23 prohibits the admission of evidence obtained in violation of Texas penal laws related to gathering, creating, or destroying evidence.” See Maj. Op. at ----.2 The majority opinion decides that appellant's confession must be suppressed under Article 38.23(a) apparently because appellant would not have confessed but for Roberts' violation of Section 37.09, Tex. Pen.Code, which, according to the majority opinion, is meant to prohibit “police officers from using fabricated documents to affect the course of their investigations.” See Maj. Op. at ---- - ----.3

I would decide that appellant's confession should not be suppressed under Article 38.23(a) because any violation of Section 37.09 by Roberts did not violate any of appellant's personal rights. See Maj. Op. at ---- (“primary purpose of article 38.23(a) is to deter unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for prosecution”) (emphasis supplied). In other words, appellant has no standing to complain that Roberts may have violated Section 37.09 in obtaining appellant's voluntary confession.

In Fuller v. State,4 this Court explained the law of standing as it relates to Article 38.23(a):

In Texas, the law of standing has been developed mainly in the courts of civil jurisdiction. There, [i]t is a fundamental rule of law that only the person whose primary legal right has been breached may seek redress for an injury. Consequently, [s]tanding consists of some interest peculiar to the person individually and not as a member of the general public. For a person to maintain a court action, [therefore], he must show that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity. One who has not suffered an invasion of a legal right does not have standing to bring suit.

Kindred rules have also appeared in the criminal context, usually as a result of search-and-seizure litigation. Thus, when the predecessor of article 38.23(a) was first enacted in 1925, contentions identical to those presented here were urged soon after. And, in a series of early opinions, this Court rejected them all, holding that [t]he right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party, and is not available to anyone else. Our position in this respect has remained generally unchanged over the years.

See Fuller, 829 S.W.2d at 201-02 (internal quotes and citation to authorities omitted).

In Fuller, the trial court admitted into evidence an audio recording that the defendant made and sent to a fellow prisoner (Brenda Hall). See id. Another prisoner took this audio recording from Brenda Hall and gave it to the police. See id. The defendant claimed at his capital murder trial that the audio recording should have been suppressed under Article 38.23(a) because it was illegally taken from Brenda Hall. See Fuller, 829 S.W.2d at 201-02. This Court applied the foregoing principles to decide that the defendant had no standing “to challenge such illegality in the context of a criminal prosecution.” See Fuller, 829 S.W.2d at 202. This Court stated in Fuller:

The justiciable injury suffered as a direct and immediate result of the illegality of which Appellant here complains was not his own. The illegality, if any, was theft or conversion. The victim, if any, was Brenda Hall. Brenda Hall may have a cognizable cause of action for conversion against someone. The State of Texas may have a basis to prosecute someone for the criminal offense committed against Brenda Hall. But no one may sue, nor may the State of Texas prosecute, anyone for an injury to the Appellant arising from the illegality about which he now complains, since he suffered no injury actionable under our law as a result of it. No actionable wrong was visited upon Appellant as a result of the seizure. For this reason we hold that he is also without standing to challenge such illegality in the context of a criminal prosecution, and we reaffirm our early cases to such effect.

See id.

In Chavez, a Rural Area Narcotics Task Force undercover police officer purchased cocaine from the defendant outside the undercover officer's geographical boundary set out in an Interlocal Assistance Agreement between various counties for the purpose of investigating illegal drug activity as authorized by a particular statutory provision in the Local Government Code. See Chavez, 9 S.W.3d at 818-19. The five-judge majority opinion in Chavez apparently understood the defendant to claim that the cocaine should have been suppressed under Article 38.23(a) because it was seized by the undercover officer in violation of the Interlocal Assistance Agreement and the statutory provision in the Local Government Code that authorized this agreement. See Chavez, 9 S.W.3d at 818-19 (McCormick, P.J., joined by Mansfield, Keller, Womack and Keasler, JJ.). The five-judge majority opinion applied Fuller to decide that the defendant had no standing to complain about the undercover officer's violation of this agreement because this violation did not violate any of the defendant's personal rights. See id.

Judge Price concurred only in the judgment in Chavez in a separate opinion, which Judge Meyers also joined. See Chavez, 9 S.W.3d at 821-23 (Price, J., concurring in the judgment, joined by Meyers, J.). Judge Price's concurring opinion agreed with the majority opinion that a defendant has no standing to complain that evidence was illegally obtained for Article 38.23(a) state exclusionary rule purposes unless the “defendant's personal or property rights are illegally violated in the obtainment of the evidence against him.” See Chavez, 9 S.W.3d at 823 (Price, J., concurring in the judgment). Judge Price also wrote:

But the underlying theory of both the [federal] exclusionary rule and article 38.23 is the same: to protect a suspect's liberty interests against the overzealousness of others in obtaining evidence to use against them. Thus, unless someone's privacy or property interests are illegally infringed upon in the obtainment of evidence, the core rationale for providing this prophylactic measure [in Article 38.23(a) ] is not met and its use is unwarranted. To expand the breadth of 38.23 to any and every violation of Texas “law”-beyond those that affect a defendant's privacy or property interests-is to ignore the basic premise under which the statute was created and would lead to absurd results.

See Chavez, 9 S.W.3d at 822-23 (Price, J., concurring in the judgment).

Judge Price's concurring opinion, however, would have decided that the illegality at issue in Chavez was the undercover officer's possession of the cocaine that he purchased from the defendant and not the undercover officer acting outside the geographical boundary set out in the Interlocal Assistance Agreement when he obtained this cocaine from the defendant. See id. at 823. Judge Price's concurring opinion still would have decided that for Article 38.23(a) state exclusionary rule purposes the defendant lacked standing to complain that the undercover officer illegally obtained (or possessed) the cocaine because “[t]he ‘law’ in question [that the undercover officer violated] does not shield a person from having his liberty interests infringed, nor were [the defendant's] privacy or property interests implicated by this criminal possession.” See Chavez, 9 S.W.3d at 823 (Price, J., concurring in the judgment).

It is, therefore, clear that seven judges in Chavez decided that a defendant has no standing to complain that evidence was illegally obtained for Article 38.23(a) state exclusionary rule purposes unless the “defendant's personal or property rights are illegally violated in the obtainment of the evidence against him.” See Chavez, 9 S.W.3d at 823 (Price, J., concurring in the judgment, joined by Meyers, J.) and at 819 (defendant has no standing to complain that evidence was illegally obtained when no invasion of the defendant's rights occurred when it was obtained) (McCormick, P.J., joined by Mansfield, Keller, Womack and Keasler, JJ.). It is inconsistent with this Court's decisions in Chavez and Fuller for the majority opinion to state that “Article 38.23 prohibits the admission of evidence obtained in violation of Texas penal laws related to gathering, creating, or destroying evidence.” See Maj. Op. at ---- (emphasis supplied). Consistent with this Court's decisions in Chavez and Fuller, this statement should read, “Article 38.23 prohibits the admission of evidence obtained in violation of Texas penal laws when these violations of Texas penal laws violate the defendant's personal or property rights.” Under Chavez and Fuller, a defendant would have no standing to complain that evidence was obtained in violation of a law “related to gathering, creating, or destroying evidence” if that violation did not violate the defendant's personal rights. The majority opinion effects a major change in Texas law and overrules sub silentio significant portions of Chavez and Fuller.5

Under Fuller and Chavez, the issue in this case is whether any violation of Section 37.09 by Roberts violated any of appellant's personal rights. Like the “criminal possession” law in Chavez, Section 37.09 “does not shield a person from having his liberty interests infringed, nor were appellant's privacy or property interests implicated” by any violation of Section 37.09 by Roberts. See Chavez, 9 S.W.3d at 823 (Price, J., concurring in the judgment). Even if, as the majority opinion states, Section 37.09 is intended to prohibit “police officers from using fabricated documents to affect the course of their investigations,” it is clear that “[n]o actionable wrong was visited upon”6 appellant as a result of any violation of Section 37.09 by Roberts and that appellant, like any other member of the general public, has no right to bring suit to enforce Section 37.09 by commencing or compelling the district attorney to commence a criminal prosecution for its violation. See Town of Castle Rock, Colorado v. Gonzales, 545 U.S. 748, 754, 768, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (private citizen complainant lacked judicially cognizable property interest in police enforcement of restraining order against complainant's husband who murdered their three children in violation of the restraining order); Leeke v. Timmerman, 454 U.S. 83, 85-86, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981) (private citizen lacks judicially cognizable interest in the prosecution or nonprosecution of another); Fuller, 829 S.W.2d at 201 (standing “consists of some interest peculiar to the person individually and not as a member of the general public” and one “who has not suffered an invasion of a legal right does not have standing to bring suit”). That is primarily a call for the district attorney to make. It would, therefore, appear that, in asserting that his confession should be suppressed because of Roberts' alleged violation of Section 37.09, appellant is really asserting the rights of the district attorney to enforce this criminal statute rather than asserting a personal right of his own.7

Consistent with this Court's decisions in Fuller and Chavez, I would decide that appellant's voluntary confession should not be suppressed under Article 38.23(a) because appellant has no standing to complain about any violation of Section 37.09 by Roberts. Excluding the relevant incriminating evidence of appellant's voluntary confession is too high a price to pay for this alleged statutory violation that did not violate any of appellant's personal rights. See Hudson, 547 U.S. at 591, 596, 126 S.Ct. 2159 (costs of excluding relevant incriminating evidence are considerable). Deciding that appellant has no standing to complain about Roberts' alleged violation of Section 37.09 would have the additional benefits of making it unnecessary for this Court to put Roberts in the same league as police officers who use throw-down guns and manufacture evidence to frame innocent people and of declaring Roberts guilty of a third-degree felony offense that Roberts had no opportunity to defend himself against at the suppression hearing8 and that, as far as this record shows, Roberts has never been formally accused of or prosecuted for violating.

With these comments, I join Judge Keasler's dissenting opinion.

COCHRAN, J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON and HOLCOMB, JJ., joined.

MEYERS, J., filed a dissenting opinion.KEASLER, J., filed a dissenting opinion in which KELLER, P.J. and HERVEY, J., joined.HERVEY, J., filed a dissenting opinion in which KELLER, P.J. and KEASLER, J., joined.

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